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Defendant Charged with Class E Felonies based on Prior Misdemeanor Charge


Ono June 21, 2007, a man was apprehended and subsequently charged with driving while intoxicated per se and common law driving while intoxicated. These two charges in the indictment are class E felonies which are predicated on a previous misdemeanor conviction for driving while intoxicated in 2001.

After arraignment, a New York DWI Lawyer said the man asked the court to reduce the felony driving while intoxicated charges to misdemeanors. He claims that in 2001 when he was convicted of those two misdemeanors, his constitutional right to counsel and his right to remain silent was violated.

From the records it was established that on August 25, 2001, the man was arrested in Saranac Lake and he was charged with misdemeanor crime of driving while intoxicated. He was taken to the police station and there he learned that he was also being arrested for assault on a domestic violence charge.

A New York DWI Lawyer said the man was held at the village police station and in the early morning of August 26, 2001, he was brought before the justice court. He appeared before the judge and he was not told that he had the right to an attorney, that if he did not have one or could not afford one, one will be provided for him. He was not aware that he had the right to remain silent and that anything he said can be used against him. He did not know that he had a right to a trial. He could not recall if he was ever apprised of those rights.

The man said that he had not gotten any sleep and that he was still reeling from the effects of stupor from his drinking the night before. He did not understand the proceedings. All he recalls was that he was asked if he wanted to plead guilty to the charges against him and he did so that he could get out of jail, pay a fine and go home.

The records show that the man pleaded guilty and he was ordered to pay a fine of $300.00 for the assault charge and $500.00 for the misdemeanor drinking while intoxicated charge. A Nassau County DWI Lawyer said he was also placed on three years’ probation on the DWI charge.

The criminal court noted that although the village clerk of Saranac Lake certified that the man pleaded guilty to those charges, the village clerk also certified that the docket and the court records of his arrest, his arraignment and all proceedings relevant to his 2001 conviction for assault and for DWI were all unavailable or missing. The justice of the peace of the village had also passed away.

Since there is no evidence that the 2001 conviction was based on a knowing and intelligent waiver of the man’s right to counsel, right to remain silent and his right to counsel, the 2001 convictions cannot be made a basis to convert these 2008 charges for misdemeanor into class E felonies.

The People objected to the order of the criminal court reducing the criminal charges of Class E felonies to criminal misdemeanor felonies.

On appeal to the Supreme Court, there is only one question: whether or not the criminal court erred in reducing the charges from Class E felonies to misdemeanors.

The Supreme Court held that since the misdemeanor conviction in 2001 was obtained while the man was not represented by a lawyer and there is no evidence that he had waived his right to be represented by a lawyer, that misdemeanor conviction cannot be made the basis to enhance a subsequent charge for driving while intoxicated misdemeanor to a felony.

There must be a showing from the court records that the 2001 conviction stemmed from a knowing, voluntary and intelligent waiver of the right to counsel. The village justice court should have conducted a searching inquiry regarding the man’s understanding of the proceedings. He should have been informed that although he can represent himself, he runs the danger of getting himself convicted if he represents himself. When the village justice of the peace saw that the man was being charged with driving while intoxicated, he should have been informed that he can avail of the defense of intoxication.

Absent any information that he had intelligently and knowingly waived his right to counsel and his right to a trial, then his convictions in 2001 cannot be made the basis for the charge of Class E felony in 2008. The felony charge was properly reduced to misdemeanor charges for driving while intoxicated.

A New York City DWI Lawyer will advise you that since you were arrested on a DWI charge, you ought not plead guilty to the misdemeanor charge without the presence and advice of counsel. An experienced lawyer will also advice you that if you do decide to plead guilty to a misdemeanor DWI charge, it can be made the basis for a felony DWI charge in the future. At Stephen Bilkis and Associates, attorneys are ready and willing to advice and assist you as you face a misdemeanor DWI charge. Speak to any of the lawyers from Stephen Bilkis and Associates today and make sure you understand the consequences of a plea of guilt to a misdemeanor DWI charge.

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